Ex Parte Bowen

Decision Date18 May 1889
Citation25 Fla. 214,6 So. 65
CourtFlorida Supreme Court
PartiesEx parte BOWEN.

Application for a writ of habeas corpus.

Syllabus by the Court

SYLLABUS

1. It is not the function of a writ of habeas corpus to bring in review any irregularity or mere error of procedure committed by a judicial tribunal having jurisdiction of the cause and the person, and under whose final judgment a party claiming to be unlawfully restrained of his liberty may be held.

2. If the judgment is void, either because of want of jurisdiction of the court over the offense charged, or because the judgment is one of a character which the law does not under any circumstances authorize to be pronounced in a case of the kind, or is simply in excess of that which the law does authorize, and the same has, in so far as it is authorized by law, been performed, or is for other reason illegal, as distinguished from being merely erroneous or irregular habeas corpus is a proper remedy.

3. The statute of this state (section 2, p. 384, McClel. Dig.) provides that an accessory before the fact to any felony may be indicted and convicted, as such an accessory, either with the principal felon or after his conviction, or may be indicted and convicted of a substantive felony, whether the principal has or has not been convicted or is or is not amenable to justice, and in the latter case may be punished as if convicted of being an accessory before the fact. B. and two others were indicted together in the circuit court, it having jurisdiction of the persons and being a court of general jurisdiction as to the offense charged. The indictment in several counts charges each one as the principal felon, and also as accessory before the fact to each of the others in the perpetration of the felony. B. was found guilty by the jury as an accessory before the fact to one of the other defendants. Subsequently such other defendant was acquitted. Before this acquittal the court had refused B. a new trial, and afterwards it refused to arrest the judgment, but imposed the sentence prescribed by the statute in such cases. Held, that a writ of error, and not habeas corpus, is the proper remedy.

COUNSEL Mershon & Rogers, for petitioner.

The Attorney General, for the State.

OPINION

RANEY, C.J.

It is not the function of a writ of habeas corpus to bring in review any irregularity or mere error of procedure committed by the judicial tribunal having jurisdiction of the cause and the person and under whose final judgment the party claiming to be unlawfully restrained of his liberty may be held. Such irregularities do not affect the jurisdiction of the court or render the judgment void. They make it voidable upon an appeal or writ of error or similar direct proceeding, but cannot be considered in a collateral proceeding. If the judgment is void, either because of want of jurisdiction in the court over the offense charged, or because the judgment is one of a character which the law does not under any circumstances authorize to be pronounced in a case of the kind, or is simply in excess of that which the law does authorize, and the same in so far as it is authorized by law has been performed, or is for other reason illegal, as distinguished from being merely erroneous or irregular, it may be assailed collaterally, andhabeas corpus is a proper remedy. These principles are fully established and are supported by the following authorities: Ex parte Hunter, 16 Fla. 575; Ex parte Martini, 23 Fla. 342, 2 South Rep. 689; Ex parte Hubbard, 65 Ala. 473; People v Foster, 104 Ill. 156; In re Crandell, 34 Wis. 177; In re Semler, 41 Wis. 516; Ex parte Gibson, 31 Cal. 619; People v. Liscomb, 60 N.Y. 559; Hurd, Hab. Corp. c. 6, § 2; Note by Mr. W. N. Hill, to People v. McLeod, 3 Hill, 662,--app.; Ex parte Shaffenburg, 4 Dill. 271; Ex parte Page, 49 Mo. 291; Feeley's Case, 12 Cush. 598.

The flagrancy of the irregularity does not change the rule, where the court pronouncing the judgment has jurisdiction, and the judgment is one which, under some circumstances, the law attaches to the offense charged.

In the case before us the indictment found at the fall term of the Osceola circuit court, last year, charges Mack Bowen, the petitioner, with the murder of one Horace Stalvey on the 28th day of September, the offense being set out in the form used in cases of murder in the first degree, and then further presents that before the commission of such murder Richard Rodgers and Henry Bracey did feloniously and from a premeditated design to effect the death of Stalvey, counsel, aid, incite, and procure Bowen to commit, in the manner and form above described in the indictment, the said felony and murder.

The indictment then charges Bracey with the murder, and Bowen and Rogers with counseling, aiding, inciting, and procuring Bracey to commit it, and finally charges Rodgers with the murder, and Bracey and Bowen with counseling, aiding, inciting, and procuring Rodgers to commit it.

It appears that severance was granted, at the request of the defendants in the indictment.

The trial of Bowen was entered upon, and on the 20th day of the month the jury returned a verdict finding him guilty of 'being an accessory to murder as charged in the second count.' As we understand the indictment, this finding was that he was guilty as an accessory to Bracey as the murderer of Stalvey.

It further appears that on the 22d day of December Bowen moved for a new trial on the usual grounds, and the motion was denied; and on the 28th day of the month he entered a motion in arrest of judgment on the ground that he had been placed on trial before the other defendants, and found guilty in the manner and form as stated above; and afterwards, on the 26th day of the same month, Bracey had been put on trial, and the jury had returned a verdict of not guilty; and that afterwards the judge, at the request of the state attorney, entered anolle prosequi as to Rodgers.

This motion was overruled. On the same day the court sentenced Bowen to be hanged. The sentence recites that he had been convicted of being, accessory before the fact (by counseling, hiring, procuring and aiding) to murder in the first degree.

The certified copies of the files and record of the circuit court before us show a verdict of acquittal, and the nol. pros. mentioned above.

Our statute provides that whoever 'counsels, hires, or other wise procures felony to be committed may be indicted and convicted as an accessory before the fact, either with the principal felon or after his conviction, or may be indicted and convicted of a substantive felony, whether the principal has or has not been convicted, or is or is not amenable to justice; and in the last-mentioned case may be punished in the same manner as if convicted of being an accessory before the fact.' Section 2, p. 384, McClel. Dig.

At the common law an accessory could be tried with the principal, or separately after his conviction, but he could not be tried before the principal, unless he consented to be so tried. It was usual and proper to include them...

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52 cases
  • Jones v. Cook
    • United States
    • Florida Supreme Court
    • 25 d2 Fevereiro d2 1941
    ...Haile v. Gardner, 82 Fla. 355, 91 So. 376; Ex parte Messer, 87 Fla. 92, 99 So. 330; Dukes v. State, 81 Fla. 247, 88 So. 474; Ex parte Bowen, 25 Fla. 214, 6 So. 65; Ex parte Prince, 27 Fla. 196, 9 So. 659, Am.St.Rep. 67; Ex parte Pitts, 35 Fla. 149, 17 So. 76; Wilson v. Joughin, 105 Fla. 353......
  • Lewis v. State
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    • Maryland Court of Appeals
    • 27 d1 Agosto d1 1979
    ...of conviction in the principal's case. E. g., Daughtrey v. State, 46 Fla. 109, 35 So. 397, 398 (1903); Ex-parte Mack Bowen, Habeas Corpus, 25 Fla. 214, 221, 6 So. 65 (1889); Simmons v. Georgia, 4 Ga. 465, 471 (1848); Baron v. The People, 1 Parker Cr.R. 246, 250 (N.Y.1851); State v. Duncan, ......
  • Sylvester v. Tindall
    • United States
    • Florida Supreme Court
    • 7 d5 Julho d5 1944
    ... ... legislature had tried in vain to adequately deal with the ... subject matter of this amendment by local or special acts (Ex ... parte Lewis, 101 Fla. 624, 135 So. 147), and the conviction ... finally arrived at by the legislature and the people that ... this matter of game and ... 461, 31 So. 248, 99 ... Am.St.Rep. 119; Ex parte Prince, 27 Fla. 196, 9 So. [154 Fla ... 682] 659, 26 Am.St.Rep. 67; Ex parte Bowen, 25 Fla. 214, 6 ... So. 65; State v. Vasquez, 49 Fla. 126, 38 So. 830; ... Wilk v. Bartow, 86 Fla 186, 97 So. 307; Burrows ... v. Moran, 81 ... ...
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    • Florida Supreme Court
    • 14 d1 Maio d1 1917
    ... ... latter it is held to be so on the ground that there is no law ... punishing the act. Ex parte Prince, 27 Fla. 196, 9 So. 659, ... 26 Am. St. Rep. 67 ... Where ... habeas corpus is invoked to obtain the discharge of a person ... 377, 47 So ... 834; Butler v. Perry, 67 Fla. 405, 66 So. 150; ... McGriff v. State, 66 Fla. 335, 63 So. 725; Ex parte ... Bowen, 25 Fla. 214, 6 So. 65; In re Coy, 127 U.S ... 731, 8 S.Ct. 1263, 32 L.Ed. 274. Some authorities hold that, ... where an essential ingredient of ... ...
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